On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed on January 22. In advance of those filings, the blog is be publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the fourth post in that series — the final post about the questions in the Windsor case.

[SLIGHTLY UPDATED to account for reader suggestions.]

In my previous twoposts, I discussed the first of the Court’s added questions in Windsor, concerning its jurisdiction to resolve the case. In this post I discuss the second added question — namely, whether the Bipartisan Legal Advisory Committee of the House of Representatives (BLAG) has appellate standing. And at the end of the post I offer some thoughts on what would happen in the unlikely event the Court holds that it lacks jurisdiction to consider any of the petitions in Windsor.

Does BLAG have standing?

The second Article III question the Court has added in Windsor invokes a longstanding, unresolved dispute about congressional standing to defend statutes (or to compel executive enforcement of statutes). It is potentially of great importance. But the Court probably will not answer it in this case.

If, on its first added Article III question, the Court holds that it has jurisdiction to reach the merits in Windsor, then it won’t matter whether BLAG has standing as a party. To be sure, the question of BLAG’s standing could have been important in the lower courts, with respect to determining whether BLAG could, e.g., file dispositive motions, compel discovery, or appeal an unfavorable judgment — functions that only a party with standing can exercise. But as the case stands now, all that matters is whether BLAG can file briefs and appear at oral argument in the Supreme Court. And whether denominated a “respondent party” or an “amicus curiae,” BLAG can do those things with the Court’s permission, regardless of whether it has Article III standing or not: It can “ride piggyback” on the U.S.’s standing, and thereby file a brief on the merits and seek leave to argue orally. Diamond v. Charles, 476 U.S. 54, 64 (1986). Indeed, the Court already has afforded BLAG the privilege of a petitioning party — namely, the opportunity to file a full-length opening brief and a reply brief — even though it is not BLAG’s petition that the Court has agreed to consider. And thus, as BLAG itself told the district court judge, if the Court otherwise has Article III jurisdiction to hear the United States’s petition, “this argument [about BLAG’s standing] is beside the point. As long as the United States is a defendant in this action . . . , the House [or BLAG] need not demonstrate any standing whatever.”

Since that is the most likely outcome here, there is a good chance the Court will not reach the question of BLAG’s standing.

On the other hand, and as I explained in my previous post, it is possible (although unlikely) that the Court might answer the first of its added questions by holding that it lacks Article III jurisdiction to hear the case unless BLAG is a proper party respondent to the United States’s petition. In that event, of course the Court would then have to go on to consider whether BLAG has standing as a party respondent to the U.S. petition. (The answer to that question would also resolve whether BLAG has standing to file its own petition from the court of appeals’ judgment — something it has now done in Windsor. But for all practical purposes, it does not matter which petition is at issue: If BLAG has standing on one or the other, or both, that would be sufficient to allow the Court to adjudicate the merits in the event it answers the first added question against jurisdiction.)

And so, a few words about the merits of the BLAG standing question.

The Supreme Court has held that individual members of Congress lack Article III standing to sue in their official capacities. But in that case the Court stated that “[w]e attach some importance to the fact that appellees [individual members Congress there] have not been authorized to represent their respective Houses of Congress in this action” (emphasis added). The Court has never resolved whether and under what circumstances the Houses of Congress, as bodies, have such standing to sue, separately or collectively, let alone whether they would have standing in a case such as this one, where a legislative entity seeks to defend the constitutionality of a statute and require the executive’s enforcement of that law.

Although DOJ will likely argue on behalf of the United States that BLAG lacks standing in this case, it will not be necessary for DOJ to convince the Court that Congress never has standing in Article III courts. There may be other contexts, such as when Congress is suing to enforce its subpoena or contempt powers, that raise quite different questions that the Court need not address in this case. But it is likely DOJ will at least advert to its longstanding view that even Congress as a whole does not have Article III standing to defend the constitutionality of statutes or to compel executive enforcement of the law, using two basic and related arguments. First, Congress has no more interest than do citizens in seeing that enacted laws are enforced — and since citizens cannot ask Article III courts to act based solely on the “abstract injury” suffered by all citizens in kind when a law or the Constitution is not enforced, neither can Congress. Second, litigation on behalf of the United States in order to secure enforcement of the Constitution and laws is an executive function — indeed, part of the President’s obligation to “take Care that the Laws be faithfully executed,” Art. II, sec. 3 — and Congress cannot engage in executive functions of that sort. Cf. Buckley v. Valeo, 424 U.S. 1, 138 (1976) (agency with members appointed by Congress cannot seek judicial enforcement of federal law because “[a] lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’”).

Moreover, DOJ will point to the fact that Congress has not even attempted to give itself statutory authority to appear on behalf of the United States. To the contrary, 28 U.S.C. § 516 provides that “[e]xcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”

If, for these reasons, Congress itself could not establish Article III standing in such a case, surely BLAG would not, either — or so DOJ will argue. (Thus, on this second question, amicus Professor Jackson will be supporting the argument of at least one other litigant.)

Of course, BLAG will argue that it does have standing to appear as a party in Windsor. And if its earlier briefs are any indication, it will rely principally upon a different aspect of the Chadhacase to support its position. As I noted in an earlier post, in that case not only did the INS petition for certiorari, but so, too, did each of the House and the Senate as intervenors. The Court granted the appeal and both of the petitions, without questioning the congressional petitioners’ Article III standing. And in the course of its opinion, the Court stated that “Congress” was “a proper party to defend the constitutionality the [statute],” 462 U.S. at 939, and that the “presence of the two Houses of Congress as adverse parties” was itself sufficient to “present a justiciable case or controversy under Art. III,” id. at 931 n.6. More recently, in footnote 20 of its 1997 decision in Arizonans for Official English v. Arizona, the Court cited those statements in Chadha with apparent favor, adding a parenthetical stating that the “Court held Congress a proper party to defend [the] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit” (emphasis added).

Moreover, BLAG will likely note, as the magistrate judge did in Windsor when he granted BLAG’s motion for intervention, that several lower courts over the years “have permitted Congress to intervene as a full party in numerous cases where the Executive Branch declines to enforce a statute that is alleged to be unconstitutional, although they have often neglected to explain their rationale for doing so.”

On the other hand, none of the parties in Chadha, nor the Court itself, raised the question of whether the House or the Senate, or the two bodies together, had Article III standing to petition in that case. Therefore the Court’s statements about Congress’s role in Chadha were made without the benefit of briefing on the question.

What is more, even if the Chadha statements and the Arizonans footnote could be read to suggest that Congress is a proper party with Article III standing in a case such as Chadha itself, Chadha is distinguishable from Windsor in at least two important respects. For one thing, Chadha, unlike Windsor,involved “a separation of powers dispute” between Congress and the Executive Branch, 462 U.S. at 936 — in particular, a dispute about whether a vote by a single chamber could be afforded legal effect, so as to supersede the Attorney General’s suspension of an alien’s deportation. This case, by contrast, does not involve a question about the respective powers of the two political branches, or whether parts of Congress can act in a way outside the lawmaking process, but is instead merely about whether the Fifth Amendment limits the effect of a statute enacted by both of those branches. (In a recent article, Professor Abner Greene suggests that Congress should have standing to sue to enforce a federal statute when the President refuses to enforce it, because in such a case the President’s actions are “tantamount to nullifying the statute.” The premise of “nullification” there is doubtful — in such a case, the statute remains on the books, and available to be implemented by the President or his successor at a later date. But in any event, Greene’s argument is inapposite here, for at least three reasons: (i) the executive branch is enforcing DOMA section 3, not refusing to enforce it; (ii) as Greene acknowledges, Congress has not attempted to afford itself statutory authority to represent the United States, or otherwise control the lawsuit, in such cases; and (iii) as noted below, BLAG does not appear on behalf of Congress.)

Perhaps most significantly, even assuming arguendo that Congress would have standing (and statutory authority) to appear as a party, in Windsor it is only a leadership committee of one of the chambers that is present — “Congress,” as such, does not appear. Cf. Bender v. Williamsport Area School District(“We conclude that although the School Board itself had a sufficient stake in the outcome of the litigation to appeal, an individual Board member cannot invoke the Board’s interest in the case to confer standing upon himself. . . . Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take.”).

Indeed, until very recently, BLAG, a self-described “advisory” committee, did not speak for, and was not authorized to litigate on behalf of, even the House of Representatives, let alone Congress as a whole. Rule II, Clause 8 of the House Rules appears to contemplate that it is the House Office of General Counsel, acting pursuant to the direction of the Speaker and in consultation with BLAG, that has the authority to “provid[e] legal assistance and representation to the House.” So, for example, in Chadha itself, and in Department of Commerce v. U.S. House of Representatives(the Census statistical sampling case), the House itself was the party, and the General Counsel represented the House. Moreover, the three-to-two vote of the BLAG in the Windsor case itself did not purport to establish that BLAG would represent the House. That vote was taken on a motion offered by Majority Leader Cantor (one of the five members of BLAG) for BLAG to recommend to the Speaker that he (the Speaker) direct the General Counsel to “take such steps as he [the General Counsel, Kerry Kircher] considers appropriate . . . to protect the interests of the House in litigation” and in particular to “retain counsel to conduct such litigation on behalf of the BLAG.” For some reason that motion — and presumably the Speaker’s subsequent direction to the General Counsel — did not instruct the General Counsel to “provide representation to the House,” as House Rule II contemplates, nor even to retain counsel on behalf of the House. Consistent with the BLAG vote on the Cantor motion, General Counsel Kircher eventually retained Bancroft PLLC, Paul Clement’s firm, to represent BLAG, not the House.

On January 3, however, the House took action to remedy this particular vulnerability in BLAG’s argument. On that day, the House passed a resolution (on virtually a straight party-line vote), one provision of which states that “Pursuant to clause 8 of rule II [of the House Rules], the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.” H. Res. 5, sec. 4(a)(1)(B). See 159 Cong. Rec. H8-10. This is a somewhat disingenuously phrased provision, in that it was not, in fact, passed “pursuant to clause 8 of House Rule II” (see above), and because it is inaccurate to say that BLAG “continues” to speak for the House since it did not do so earlier. The important point, however, is that House Resolution 5 does appear to be an authorization from the House itself for BLAG to “speak for . . . the House . . . in Windsor,” at least going forward.

Even so, the House is not the Congress: Unlike in Chadha, the Senate has not followed the House’s lead here.

For these reasons, the Chadha and Arizonans statements, even if taken at face value, would not themselves be sufficient to resolve the question of BLAG’s Article III standing.

What if?

What would become of the decisions below, and of DOMA Section 3 more broadly, if the Court were to hold that it lacks jurisdiction to adjudicate the U.S.’s Windsor petition and that it cannot adjudicate BLAG’s petition because BLAG lacks standing? The answer to that question would probably depend upon the Court’s rationale on the first question.

If the Court held that it lacked jurisdiction simply because the U.S. and Windsor agreed about the proper outcome (a conclusion that would require repudiation of at least some of the Court’s rationale in Chadha), presumably that would mean the lower courts likewise lacked Article III jurisdiction in Windsor, and the Court would vacate those courts’ judgments. That is to say, the Windsor case, and all other cases challenging the constitutionality of DOMA Section 3, would be dismissed without resolution. And since the executive branch is only enforcing DOMA Section 3 because of its traditional view that the Court should have an opportunity to resolve such questions, the executive branch likely would cease enforcing that provision of law in the absence of any possibility of judicial resolution, in light of the President’s determination that it is unconstitutional. And therefore, in that case, the U.S./Windsor view would prevail, anyway (at least during the Obama Administration), without the Court having a chance to weigh in on the question. (For a slightly different perspective on the Executive’s options in such an event, see Mike Dorf here .)

But if the Court were to issue a more limited ruling, say, based upon the “Deposit Guaranty + Moore Rule” holding I hypothesized in my last post — namely, that there was jurisdiction in the district court (because the case was brought there by an aggrieved party, Windsor), but that there was no jurisdiction for the U.S. to appeal from the district court judgment — then the district court judgment would stand, and Windsor would get her tax refund. But the court of appeals’ judgment would be vacated, since there would not have been Article III jurisdiction to hear the U.S.’s appeal from the trial court’s judgment. Similarly, the judgment of the court of appeals in the First Circuit case would likewise be vacated. (But district court judgments for plaintiffs in other cases, which have not yet reached the courts of appeals, presumably would be enforced.)

In that event, the United States presumably would continue to enforce DOMA Section 3 as to all persons in same-sex marriages other than Windsor herself. Each of those individuals would then have to sue the United States for relief, and in each case the U.S. would agree that DOMA should not apply. None of the cases would reach a court of appeals until a district court ruled against a plaintiff; and no case could be appealed to the Supreme Court unless and until a court of appeals affirmed a district court judgment that Section 3 is constitutional.

Moreover, if it appeared after some time as though there might never be such a case that could be heard by the Supreme Court, the executive branch might decide to cease enforcement of Section 3 altogether, which would effectively resolve the question (at least for now) without an opportunity for the Court to weigh in.

It is not obvious why the Constitution should be understood to require such an inefficient and convoluted resolution of the dispute over DOMA’s constitutionality, one that would at a minimum prolong the uncertainty on the issue and perhaps prevent the Court from opining on it altogether. As the Court recently stated in Camreta, “[t]his Court, needless to say, . . . plays a role in clarifying rights,” and thus presumably it would disfavor any rule that would prevent it from clarifying such rights “‘without undue delay.’”

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.